Food Marketing Institute v. Argus Leader Media involves the interpretation of Exemption 4 to the Freedom of Information Act, which protects from mandatory disclosure all “confidential” private-sector “commercial or financial information” that comes into the government’s possession.

On April 22, the U.S. Supreme Court heard oral arguments in the case, which FMI says “has far-reaching implications when it comes to your confidential commercial information.” Click here to see the case docket.

“FMI is a named party in the case because we ardently believe in defending our industry’s right to compete on a level playing field and its ability to serve a customer base as diverse as the nation’s palate,” says a statement from the institute.

“The issue before the court in Food Marketing Institute vs. Argus Leader Media is whether FOIA’s Exemption 4 protects from mandatory disclosure store-level SNAP redemption data,” the statement says. “Retailers carefully safeguard such sensitive information, which has significant value to competitors. FMI therefore intervened in the lawsuit on appeal to argue that store-level SNAP redemption data constitutes confidential commercial information, and is therefore exempt from disclosure under FOIA. Argus Leader, a South Dakota newspaper owned by Gannett, has argued that taxpayers have a right to know where government dollars are spent. FMI and its members don’t disagree with that general proposition—but food retailers of all sizes and geographic locations have expressed apprehension about the release of this individualized, highly granular information, which says less about how and where government money is spent than on the specific competitive position of particular stores and companies. Smaller companies have expressed concern over larger U.S. competitors receiving the data, and larger U.S. players have expressed concern about international online operators without existing U.S. stores gaining access to this confidential sales data.”

National Grocers Association President and CEO Peter Larkin released the following statement the day the arguments were presented before the U.S. Supreme Court: “Store-level sales data from SNAP or any other transaction is confidential information. NGA has long maintained that a retailer’s SNAP store data should remain private as the data contains confidential store sales information that could be used by competitors to target and harm local, community-based supermarkets. The supermarket industry is highly competitive and any public disclosure of this sales information could give competitors an unfair advantage, particularly over many small and medium-size grocers, as well as stigmatize stores that serve low-income communities.”

In August 2011, the Argus Leader sued USDA for annual SNAP store sales data after USDA denied a Freedom of Information Act request for the data. In May of 2016, Larkin testified on behalf of USDA as a supermarket expert and representative of the independent supermarket industry in the case.

In 2017, NGA filed an amicus brief in FMI’s appeal of the District Court’s ruling in favor of the Argus Leader. NGA strongly supports the continued adherence to USDA’s policy, adopted in 1978, that prohibited the disclosure of sales/redemption information submitted by retailers except for purposes directly connected with the administration and enforcement of the Food Stamp Act (now Food and Nutrition Act).

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